By Aparna Komarla & Tiffany Devlin
The Covid In-Custody Project partners with the Davis Vanguard to bring quantitative and qualitative reporting on the pandemic’s impact on county jails and CDCR to the public eye. This story is authored by the Covid In-Custody team.
ALAMEDA, CA— On March 1 2021, the Alameda County Health Officer issued a health order making COVID-19 testing mandatory for Sheriff’s Office employees who work at Santa Rita Jail.
While the order stands out as one of few testing requirements for county jail staff in California, its implementation has been far from sufficient. By not reaching a 100 percent compliance rate and failing to test individuals in strict 14-day intervals, the Sheriff’s Office has unequivocally violated the order and undermined public health guidance.
Until April 2021, the Alameda County Public Health Dept. had only recommended that the Sheriff’s Office test 100 percent of jail staff per month or 25 percent per week. After failing to do so, COVID-19 infections among staff unsurprisingly contributed to outbreaks in the incarcerated population.
Prior to the jail’s largest outbreak that occurred in December 2020, there was a surge of over 45 jail staff and contractor cases detected from voluntary testing. Through contact tracing the Public Health Dept. concluded that the outbreak, which peaked with 150 active cases and continued well into 2021, had been linked to the staff positives. Most active cases were concentrated in HU 34 D,E,F— open dorm-style housing units. A shared airspace in dorm-style housing, allows for more exposure and transmission of the virus compared to cells.
Mike Durbin, the Health Services Administrator for Wellpath and the Sheriff’s Office told Mike Brady, an independent consultant who monitors Santa Rita Jail’s COVID-19 response, that “there was a high probability that an asymptomatic Deputy was the vector for introducing the virus into HU 34.” Brady, a lead consultant with Sabot Consulting, is tasked with conducting periodic spot checks at the jail as part of an on-going lawsuit, Babu v. Ahern, which alleges severe misconduct by jail staff.
The link between COVID-19 infections among jail staff and outbreaks in the incarcerated population is not unique to Santa Rita Jail. Carceral facilities across the country, including the CA Department of Corrections and Rehabilitation (CDCR) report similar challenges. Prior to vaccine rollouts, regular testing was the only way to prevent this transmission.
To that end, the Public Health Dept. sought to make testing more accessible to jail staff by setting up an on-site testing pod in January 2021. The idea was to make regular testing feasible and convenient, but voluntary. Despite free testing available for six days per week*, the Sheriff’s Office failed to test all staff per month.
Seeing that voluntary testing was unsuccessful, and the Public Health Dept.’s recommendation for frequent testing was far from being met, community members raised concerns about future outbreaks being triggered by infections among staff. The County Health Officer subsequently moved to mandate testing on March 1, 2021.
According to the order, every Sheriff’s Office employee working at the jail must be tested bi-weekly. In the last two months, not only has the compliance rate never reached 100 percent, staff members are also not being tested exactly 14-days apart. Further, the order itself is limited in scope since it does not apply to everyone who enters the jail premises such as Public Defenders, medical workers, Probation Dept. staff etc. It only addresses the Sheriff’s Office Custody Bureau.
Jail Commander Yesenia Sanchez and Captain April Luckett-Fahimi have stated that confusion about the testing blocks’ starting and ending dates contributed to the low compliance rate in the first three cycles. To combat this, they implemented a one-time 7-day extension for the May 9 – May 23 cycle to align future testing blocks with the employee pay period, which they feel will drastically improve compliance.
Even though the compliance rate has increased, although not reaching 100 percent, the Sheriff’s Office will continue to be in violation of the health order since the calculation for compliance itself is flawed.
Currently, if a staff member gets tested anywhere in a given testing block, as opposed to exactly 14-days after their previous test as required by the order, the Sheriff’s Office will give them the green light. i.e. if a staff member got tested on April 12 during the April 11 – 24 block, and then on May 7 during the April 25 – May 8 block, they would be in compliance even though the tests were 25 days apart. They could easily contract the virus and recover without showing up as positive on both tests, defeating the purpose of surveillance testing**.
When confronted with this erroneous implementation, Kimi Watkins-Tartt, director of the Alameda County Public Health Dept., tried to emphasize the “intent” of regular testing.
According to Captain Luckett-Fahimi, if the order was implemented as required, i.e. by ensuring staff are tested not only in every block but also 14-days apart, the compliance rate would suffer. “Our staff are transitory in nature and if allowed to test only on a specified day would cause a decrease in compliance,” she insisted.
Captain Luckett-Fahimi stated that with staff members taking time off for vacation, attending training, being placed in undercover assignments, working partial shifts, or coming from different duty stations, it would be almost impossible for testing to be done in exactly 14-day intervals. She claims that the bigger issue at hand is whether staff members are being tested at all.
“I do not believe that we will be successful at all,” she responded, when questioned if ACSO can fix the implementation and maintain a high compliance rate.
Commander Sanchez added that if staff had to get tested exactly 14-days apart, ACSO would have to compensate anyone who comes into SRJ specifically to test and does not work overtime, which would be an additional cost to the County.
The California Department of Corrections and Rehabilitation (CDCR) implemented a weekly testing requirement for prison staff in December 2020, which saw a similar violation— staff were getting tested anywhere in a 7-day testing period rather than getting tested exactly 7-days apart. Further, the process of checking compliance only identified non-compliant staff the week after they had worked without having been tested.
The plaintiffs for Plata v. Newsom, a class-action lawsuit against CDCR and the State regarding the low-quality medical care behind bars, also identified that 95 staff members failed to comply between December 2020 to January 2021.
Since the first testing block at SRJ, 43 jail staff have failed to test in consecutive testing cycles. Although the Sheriff’s Office has sent them warning letters, their pay or continued employment is not contingent on their compliance. Without clear consequences or punishments for non-compliance, some advocates argue that the warnings lack teeth.
Until early June, the Sheriff’s Office had not decided what administrative actions would be taken for staff who fail to test in consecutive cycles despite four testing cycles going by with a declining compliance rate.
In response to the significant number of individuals out of compliance in each testing period, Luckett-Fahimi stated that, “it does not appear to us that people are purposefully avoiding getting tested.”
On June 4, Commander Sanchez stated that one staff member who failed to get tested in all cycles is facing disciplinary action. She refused to disclose the specifics of the punitive action since the officer is protected under the Peace Officer Bill of Rights.
On July 9, Captain Luckett-Fahimi explained that another staff member has also been disciplined for failing to get tested. He was off-duty for a long period of time and returned to work assuming that he did not need to be tested because he was vaccinated.
Despite these obvious violations, there is little being done in terms of enforcement and accountability.
Kimi Watkins-Tartt has vehemently stated that since the Public Health Dept. is not an enforcement agency they will not take any legal action against the Sheriff. However, legal action aside, her department has neither made any public criticisms of the violations nor have they announced amendments to make the order stricter.
Another limitation with the health order is the scope. Testing requirements for jail staff in Santa Clara and San Francisco counties, similarly aim to prevent outbreaks in the jail population, however they apply to any and all city or county employees who enter the jail’s premises.
Santa Clara County’s mandatory testing order went into effect on November 12, 2020 requiring all county staff assigned to the Probation Dept., Dept. of Corrections, Sheriff’s Office Custody Bureau and Custody Health Services to get tested bi-weekly. Similarly, the order in San Francisco County applied to all city employees who enter the jails’ premises, including but not limited to employees of the Sheriff’s Office, Jail Health Services, Dept. of Public Health, Public Defender’s Office.
In contrast, the Alameda County Health Officer’s order only applies to the Sheriff’s Office Custody Bureau— not to other city or county employees entering the jail.
Mike Durbin has stated that he has no intention of implementing a testing requirement for Wellpath medical staff unless he is ordered to do so. There are over 150 full-time and part-time medical staff at the jail.
A recent U.S. Department of Justice report found that from March to June 2020, five percent of jail staff nationally tested positive for the virus. Additionally, infection rates among prison staff were more than triple that of the U.S population. Without thorough surveillance testing, staff infections will continue to pose a risk to incarcerated populations, especially when vaccination rates are low.
Using the California Immunization Registry (CAIR) database, the Public Health Dept. has matched 56.6 percent of the ACSO roster with records of individuals in any California county who received at least one dose and 39.4 percent with records of fully vaccinated individuals, as of May 30.
These records, however, do not specify which ACSO division an employee works for. Consequently, the degree of immunity among those interacting with SRJ’s population is unknown, since there is no data specific to ACSO’s custody bureau.
There are also limitations with the accuracy and scope of CAIR data generally. Commander Sanchez highlighted that “missing data and a lack of consistent identification” are issues that ACPHD cautions about, which other counties have reported as well.
Since the data available on staff vaccinations is limited and erroneous, ACSO could survey their staff to generate more accurate data. All staff members would self-report their vaccination status and the division of ACSO they work for.
In response to a Public Records Act request on jail staff vaccinations in San Francisco County, the Dept. of Human Resources provided the total number of SFSO staff in the custody bureau who self-reported as fully or partially vaccinated. The Covid In-Custody Project has requested ACSO to implement a similar method to retrieve better quality data.
SRJ’s medical provider, Wellpath, has similarly surveyed their full-time and part-time medical staff for their vaccination status. Out of 216 staff members— 134 full-time and 82 part-time staff— roughly 77 percent are fully vaccinated. 35 reported that they have chosen not to get vaccinated, and 14 refused to disclose any information on their vaccination status.
In Santa Clara County, the Health Officer has issued a health order requiring businesses and governmental entities to ascertain the vaccination status of all personnel. The order states that, “Until a person’s vaccination status is ascertained, they must be treated as not fully vaccinated. Personnel who decline to provide vaccination status must also be treated as unvaccinated.” Under the order, a self-certification of vaccination status form is to be shared with all employees.
When asked if a similar health order could be issued for ACSO, Kimi Watkins-Tartt, director of the Alameda County Public Health Dept., stated that they do not plan on doing so.
Currently, businesses are required to follow CAL/OSHA guidance. Anyone who is unvaccinated is still, without a health officer order specific to SRJ, treated as unvaccinated. As an employer, masking is still required inside of the business settings, and this applies to ACSO as well.
Captain Luckett-Fahimi added that ACSO has not relinquished any of their COVID-19 protocols, and all staff are still required to wear masks. Temperature checks and cleanliness protocols are also still in place.
It is unclear if ACSO will provide more comprehensive and accurate data on custody staff vaccinations. Until then, there is little clarity available regarding the threat staff infections pose to Santa Rita Jail’s population.
As a result, the lack of transparency on vaccine uptake for jail staff has exacerbated concerns regarding the mandatory testing order’s implementation.
In contrast, Santa Clara County’s jail staff compliance with the mandatory testing order has consistently been at 100 percent. The Sheriff’s Office also regularly provides data on vaccine uptake for custody staff in their monthly Public Safety and Justice Committee meetings— 58 percent of custody sworn staff and 73 percent of custody civilian staff have been vaccinated as of May 7***.
While the Alameda County Sheriff’s Office continues to strive for 100 percent compliance with mandatory testing, more must be done to ensure that the spread of COVID-19 is mitigated.
*On Saturday and Sunday testing is offered for only four hours per day. On M/T/R/F it is available for 8 hours per day. Testing is available on all days except Wednesday.
**The health order states, “All ACSO employees working in Santa Rita Jail must be retested for COVID-19 14 days after the initial baseline testing, and again every 14 days thereafter while this Order remains in effect. Testing may be staggered across different days to facilitate implementation, as long as each staff member is tested every 14 days.”
***These numbers only include staff members who were vaccinated through the Public Safety Clinic organized by the Public Health Dept. It does not count those who received vaccines through their own providers.